Thomas Jefferson offered one of the earliest formulations of the sentiment, although not of the phrase. In 1803, Jefferson's ambassadors to France arranged the purchase of the Louisiana territory in conflict with Jefferson's personal belief that the Constitution did not bestow upon the federal government the right to acquire or possess foreign territory. Due to political considerations, however, Jefferson disregarded his constitutional doubts, signed the proposed treaty, and sent it to the Senate for ratification. In justifying his actions, he later wrote: "[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."[1]

Under the United States Constitution, habeas corpus can be suspended in cases of rebellion or invasion. The Confederacy was rebelling, thus suspension of habeas corpus was both legal and constitutional—but only if done by Congress, since the Constitution reserves this power under Article I, which pertains solely to congressional powers; Lincoln, meanwhile, usurped the power under his own executive order. After habeas corpus was suspended by General Winfield Scott in one theater of the Civil War in 1861, Lincoln did write that Scott "could arrest, and detain, without resort to ordinary processes and forms of law, such individuals as he might deem dangerous to public safety." After Chief JusticeRoger B. Taney attacked the president for this policy, Lincoln responded in a Special Session to Congress on July 4, 1861 that an insurrection "in nearly one-third of the States had subverted the whole of the laws . . . Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"

Later in the war, after some had criticized the arrest and detention of Congressman Clement Vallandigham of Ohio, Lincoln wrote to Erastus Corning in June 1862 that Vallandigham was arrested "because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. . . . Must I shoot a simple-minded deserter, while I must not touch a hair of a wily agitator who induces him to desert?" Lincoln did not comment on the proper channels of due process regarding such "agitation."

Associate Justice Robert Jackson wrote a twenty-four page dissent in response to the Court's four page decision, which concluded: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Justice Arthur Goldberg wrote the court's opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez. The court determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. Goldberg wrote: "The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government."[2]